John Edge, Kt., C.J. and Blennerhassett, J.
1. This was a suit for rent of shops brought against a Muhammadan who is a minor and has appeared under the guardianship of his mother. An uncle of the minor, assuming to act as a guardian, had granted to the plaintiff a mortgage over the minor's property, and on the same day took a lease of these shops which were the mortgaged property, in favour of the minor. It is for rent alleged to be payable under that lease that this suit is brought. The first Court decreed the claim. The Lower Appellate Court confirmed the decree. The defendant has appealed here.
2. The minor's guardian was not a guardian having power to mortgage the minor's property, and as he had not that authority, he was not in a position to give the plaintiff a good title as against the minor. In our opinion that view is supported by the decisions in Ruttun v. Dhoomee Khan N.W.P.H.C. Rep. 1869 p. 21; Bhutnath Dey v. Ahmed Hosam I.L.R. 11 Cal. 417; Anapurnabi v. Durgapa Mahalapa Naik I.L.R. 20 Bom. 150; Baba v. Shivappa I.L.R. 20 Bom. 199; Mussamut Bukshun v. Mussamut Doolhin 12 W.R. 337 and Girraj Bakhsh v. Kazi Hamid Ali I.L.R. 9 All. 340.
3. It appears to us that if the plaintiff had brought his suit to enforce his mortgage against the minor it would have been a perfect defence for the minor to make that his uncle had no authority to bind the minor or his estate. It also appears to us that the position is not altered by the fact that the minor's uncle, Farid-ud-din, having made the mortgage, took a lease of the mortgaged property in favour of the minor. If we were to enforce this, lease, we should be practically enforcing the mortgage, for this reason that the lease stands or falls with the mortgage. The property belongs to the minor. If the minor were bringing a suit to set aside the mortgage or to set aside the lease, we could, no doubt, in such a suit decline to grant him relief until he had made compensation to the mortgagee to the extent to which the minor or his property had benefited by the money advanced on the security of the mortgage. The position is altered when the minor is a defendant and not a plaintiff.
4. We need not decide whether or not the plaintiff could succeed in another suit in obtaining restitution or compensation. We cannot give the plaintiff a decree here to be executed in case the minor does not make compensation. We allow this appeal with costs, and set aside the decrees in the Courts below, and dismiss the suit with costs as against Nizam-ud-din Shah. The other parties are not before us, so this decree will not affect the decrees against them.